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Guest Blog: Professor Michael Kagan, Scialabba v. Cuellar de Osorio

There are not very many uncontroversial things that can be said about immigration law, but perhaps all sides agree on this: The Immigration and National Act (INA) is not a model of clarity. Monday’s Supreme Court decision in Scialabba v. Cuellar de Osoriofocuses on just one small example, known as the 2002 Child Status Protection Act, and a problem for young would-be immigrants known as “aging out.” Because five Justices thought the statute was unclear, they deferred to the Board of Immigration Appeals’ harsh interpretation of the statute, which makes young immigrants wait much longer for entry.

In law school, interpreting the immigration statute can make for an endless supply of statutory interpretation exercises. But there is much more at stake here. In practical terms for real people, the Court in Cuellar de Osorio held that if the Executive Branch thinks that some immigrant families should wait two extra decades to be together, it can make them wait. It doesn’t have to make them wait, but it can.

The Court’s real message may be this: It’s not our responsibility to soften the edges of immigration law. That’s the job of the President and Congress.

This was a 5-4 decision, and reasonable people can certainly disagree on whether the majority was correct. But regardless of whether the majority or the dissent got the legal doctrine right, the case raises pointed questions for the Obama Administration.

To start: Why did Attorney General Holder take the aging out case so far anyway? Is the Administration actually against reuniting families who have already waited more than a decade to be together? Was this a conscious policy choice by the Administration, or the harsh result of a bureaucracy adopting a certain position, and mindlessly defending it through two circuit appeals and then to the Supreme Court?

A potential lifetime of waiting

To understand what was really at stake for American families in Cuellar de Osorio, one has to try to grasp the outlines of how we make families wait for the chance to immigrate to this country legally. While for most Americans reaching one’s 21st birthday is a happy if not necessarily sober milestone, for immigrant families it can trigger years, and, for some, decades of forced family separation.

The reasons why a would-be immigrant’s 21st birthday can cause so much pain become clear with reference to the State Department’s Visa Bulletin, which is the government’s monthly index of how long a person must wait to immigrate to this country legally. To bring a child to the U.S., it makes a huge difference whether the child has turned 21. For a Mexican legal permanent resident to bring a 20-year-old child to the US today, she would have needed to file an application in March 2011. But for that same parent to bring an over-21-year-old child, she would have needed to file the application in August 1993, meaning that parents and children would be forced to live apart for an extra 18 years.[Note: Immigration lawyers will already have noticed that I am glossing over some complexities about how these dates are computed. But unless one wants to actually practice in this area of law, you don’t need to worry about these details to understand this case.]

Aging out has the potential to make this even more tragic, because it creates the possibility that a child might be quite young when a sponsorship application is filed for him, but will have reached his 21st birthday by the time a visa to America is actually available. Should such children go to the back of the line?

In 2002, Congress said no. Mostly. But, as is de rigueur in this area of law, Congress left some situations less clear.

Imagine that in December 2001 a Chinese-American, a U.S. Citizen, filed an application to sponsor his sister in Beijing. She was married, and had an 11-year-old son, who would be known as derivatives. Now, in June 2014, her visa is finally ready, and she can come with her husband.

But her son is now 24. He can’t be a derivative anymore. His mother is about to become a legal permanent resident, and can thus sponsor him. But the waiting time for a visa for the unmarried adult son of a legal resident is about seven years for most nationalities. Should this young man have to wait seven more years?

For a Mexican family, it’s even worse. Because our immigration law makes Mexicans wait longer to immigrate legally, it would have taken five more years for the mom’s visa to come through. And if her son had to wait again, the extra delay for a Mexican is currently 21 years. So, if you do the math, that 11-year-old boy would be 50 by the time he could actually legally travel to the United States. By then, he might easily have his own adult children, and they would have been forced to grow up separated from their relatives in the United States.

Actually, since I’m glossing over some details, he would probably be older.

Perfectly (un)clear

The legal dispute in Cuellar de Osorio was whether children in this situation should be made to wait the extra 7 or 21 years. In Matter of Wang, the Board of Immigration Appeals (BIA) said, make them wait. The Ninth Circuit (en banc) overruled this interpretation based on the Child Status Protection Act. But the key provision, 8 U.S. C. 1153(h), is not written in the plainest of terms. It says this:

If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(2)(A) and (d) of this section, the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.

It does seem that this provision allows a new petition to be dated by an older petition. Four Supreme Court dissenters and all but one judge in an en banc Ninth Circuit panel thought this was clear and unambiguous. But five Supreme Court justices thought it anything but clear. As if to underline the point, the five justices in the majority could not even agree on exactly why the statute is ambiguous, so there is no single majority opinion.

When a statute is ambiguous, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. calls on courts to defer to an agency’s reasonable interpretation. Thus, for five justices, it was irrelevant whether it is wise to make immigrant families wait, much less whether it is consistent with American values. The statute is ambiguous. The BIA’s interpretation is not unreasonable. Done.

Immediate human concerns

Prof. Kevin Johnson has already summarized why this application of Chevron in an immigration case is unsurprising for the Roberts Court.

As is often the case in administrative law cases, Cuellar de Osorio says more about who gets to make decisions than it does about what the best decision would be. The majority holds that the BIA’s interpretation is permissible. It does not say that it is the best one. Nor is the Executive Branch bound to continue taking this approach.

The Court has implied in the past that it knows that rigid enforcement of the INA can have cruel effects on real people. But it does not think that the judiciary should lead the way in mitigating these cruelties. In Arizona v. U.S., the Court said: “Discretion in the enforcement of immigration law embraces immediate human concerns.” That statement came against the background of President Obama’s deferred action program, which grants reprieves for sympathetic immigrants who could be deported under a more rigid enforcement policy.

In her plurality opinion in Cuellar de Osorio, Justice Kagan justified deferring to the executive’s interpretation of immigration law on its expertise in foreign relations. This is a thin rationale at best in this particular case. How much foreign affairs expertise does the Board of Immigration Appeals possess? It is hard to see why the Board members have any more claim to expertise on foreign affairs than federal judges.

Perhaps the better rationale is that when the political branches make a choice about how to apply the law, they are accountable to the voters. President Obama announced his deferred action policy in an election year in a Rose Garden speech, was criticized for it by his Republican opponent, and was re-elected. When more than one approach is possible, this might be a more democratic affirmation of a policy choice than a court could ever offer.

The important point here is that the judiciary is not the only institution that can overrule the Board of Immigration Appeals. At any given time, the Attorney General could scrap Matter of Wang and adopt a more lenient interpretation of the INA. This option remains viable. See 8 C.F.R. §§ 1003.1(d)(i), 1003.1(g).

The questions that should be asked after Cuellar de Osorio are more political than doctrinal. Other then promoting Comprehensive Immigration Reform legislation, President Obama’s signature immigration policy has been to focus on deporting immigrants with criminal records while showing mercy toward those with sympathetic ties to American society. Even if the Supreme Court’s decision was right, the Attorney General’s decision to take the case to the Court in the first place does not seem consistent with Obama’s policy.

These are not questions that the Supreme Court can answer. But the President can. And so can voters.

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Author Description

Michael Kagan is a law professor at the University of Nevada, Las Vegas, specializing in immigration, professional responsibility, administrative law, legal aid development and international human rights. He has consulted widely with law firms and human rights organizations, and has expertise on legal malpractice and the intersection of criminal and immigration law. His work has been cited by federal courts of appeal in the U.S., the High Court of Israel, and the Refugee Status Appeals Authority of New Zealand.